Scope and nature of criminal legal aid

Criminal legal aid is defined as your representation or, where appropriate, counsel’s representation [section 21(4) of The Legal Aid (Scotland) Act 1986] in the steps preliminary to or incidental to criminal proceedings.

Criminal legal aid is available in the following courts:

• High Court of Justiciary
• Sheriff court
• Justice of the Peace court
• Any reference, appeal or application for special leave to appeal to the UK Supreme Court [section 288AA and 288ZB of the Criminal Procedure (Scotland) Act 1995`]

This Part of this Act applies to legal aid in connection with criminal proceedings before any of the following:

• High Court of Justiciary
• Sheriff Appeal Court
• Sheriff
• The JP court

Criminal legal aid shall consist of representation by:

• A solicitor and where appropriate, by counsel
• A solicitor at any identification parade held, by or on behalf of the prosecutor

This grant will include all such assistance as is usually given by you or counsel in the steps preliminary to or incidental to criminal proceedings.

Summary criminal legal aid [section 24 of The Legal Aid (Scotland) Act 1986] is not available until the conclusion of the first diet at which the accused has tendered a plea of not guilty.

Legal aid in summary proceedings

Criminal legal aid shall be made available to your client in summary proceedings if we are satisfied:

• After consideration of the financial circumstances of your client, that the expenses of the case cannot be met without undue hardship to your client or their dependants
• That in all the circumstances of the case it is in the interests of justice that legal aid should be made available

Legal aid made available to your client may be subject to conditions as we see fit and such conditions may be imposed at any time.

Factors considered – interests of justice

We will take into account the following factors when determining whether it is in the interests of justice that criminal legal aid be made available:

• That if the offence is proved, the court would impose a sentence which would deprive your client of their liberty or loss of their livelihood
• The case may involve consideration of a substantial question of law, or of evidence of a complex or difficult nature
• Your client may be unable to understand the proceedings or to state their own case because of age, inadequate knowledge of English, mental illness, other mental or physical disability
• It is in the interests of someone other than your client that your client is legally represented
• The defence to be advanced by your client does not appear to be frivolous
• Your client has been remanded in custody pending trial

Review of a refused application

If your client’s application for criminal legal aid in summary proceedings has been refused, we have a procedure that allows you to apply to us for a review of this decision.

If after a review your client is no longer considered eligible, your client may be required to pay back, in part or in full, the criminal legal aid they have already received to the Fund.

Clients with no criminal legal aid

The client being prosecuted under summary procedure may not be in receipt of criminal legal aid and may not be represented by a solicitor or counsel.

This may be because the client:

• Has not applied for criminal legal aid in connection with proceedings
• Has applied for criminal legal aid but been refused it on the grounds that it is not in the interests of justice
• Is no longer receiving criminal legal aid in connection with proceedings because we are no longer satisfied as to the merits of the case

However, if the court considers there to be exceptional circumstances within the case they may believe it would be inequitable to proceed without representation and legal aid. The court may adjourn to enable an application for legal aid to be made to us..

Criminal legal aid shall be available to such a client until their application is determined by us.